EXHIBIT 2
FORM OF STOCKHOLDER TENDER AGREEMENT
This Stockholder Tender Agreement is entered into as of , 2001,
by and between Exelixis, Inc., a Delaware corporation ("PARENT") and [Name]
("STOCKHOLDER").
RECITALS
A. Parent, Bluegreen Acquisition Sub, Inc., a Delaware corporation and a
wholly owned subsidiary of Parent ("MERGER SUB") and Genomica Corporation, a
Delaware corporation (the "COMPANY"), are entering into an Agreement and Plan of
Merger and Reorganization of even date herewith (the "MERGER AGREEMENT") which
provides (subject to the conditions set forth therein) for the offer by Merger
Sub to purchase all outstanding shares of the Company Common Stock and the
subsequent merger of Merger Sub with and into the Company (the "MERGER").
Capitalized terms not otherwise defined herein shall have the meanings given to
them in the Merger Agreement.
B. In order to induce Parent and Merger Sub to enter into the Merger
Agreement, Stockholder, solely in its capacity as a Stockholder of the Company,
is entering into this Stockholder Tender Agreement.
AGREEMENT
The parties to this Stockholder Tender Agreement, intending to be legally
bound, agree as follows:
1. TENDER AND VOTING OF SHARES.
1.1 Agreement to Tender. Subject to Parent's waiver of such obligations,
the Stockholder hereby agrees to tender, or cause to be tendered, pursuant to
and in accordance with the terms of the Offer, the Tender Shares, and agrees
that it will not withdraw or permit the withdrawal of the tender of the Tender
Shares. Within ten business days after commencement of the Offer, the
Stockholder shall (x) deliver to the depository designated in the Offer (i) a
letter of transmittal with respect to the Tender Shares complying with the terms
of the Offer, (ii) certificates representing the Tender Shares, and (iii) all
other documents or instruments required to be delivered pursuant to the terms of
the Offer, and/or (y) instruct its broker or such other Person who is the holder
of record of any Tender Shares beneficially owned by the Stockholder to promptly
tender such Tender Shares for exchange in the Offer pursuant to the terms and
conditions of the Offer. Provided that the conditions to the Offer are
satisfied, or waived by Parent, Parent shall purchase the Tender Shares in
accordance with the terms of the Offer.
1.2 Voting. Stockholder agrees that, during the period from the date of
this Stockholder Tender Agreement through the Expiration Date, at any meeting of
stockholders of the Company, however called, and in any action by written
consent of the stockholders of the Company, Stockholder shall, unless otherwise
directed in writing by Parent, vote the Subject Securities or cause the Subject
Securities to be voted (to the extent such securities are entitled to be voted)
in such Stockholder's sole capacity as a stockholder:
(a) against any action or agreement that would result in a breach of
any representation, warranty, covenant or obligation of the Company in the
Merger Agreement;
(b) against any action or agreement that would cause any provision
contained in Section 7 or Annex I of the Merger Agreement to not be
satisfied; and
(c) against the following actions (other than the Offer, the Merger
and the transactions contemplated by the Merger Agreement): (i) any
Acquisition Proposal; (ii) any change in a majority of the members of the
Board of Directors of the Company, other than any change contemplated by
Section 1.3 of the Merger Agreement; or (iii) any other action which is
intended, or could reasonably be expected to, impede, interfere with,
delay, postpone, discourage or adversely affect the consummation of the
Offer, the
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Merger or any of the other transactions contemplated by the Merger
Agreement or this Stockholder Tender Agreement.
1.3 Proxy; Further Assurances. Contemporaneously with the execution of
this Stockholder Tender Agreement: (i) Stockholder shall execute and deliver to
Parent a proxy in the form attached to this Stockholder Tender Agreement as
Exhibit A, which shall be irrevocable to the fullest extent permitted by law,
with respect to the Tender Shares (the "PROXY"); and (ii) Stockholder shall
cause to be delivered to Parent an additional proxy (in the form attached hereto
as Exhibit A) executed on behalf of the record owner of any outstanding shares
of Company Common Stock that are Owned by the Stockholder.
2. TRANSFER OF SUBJECT SECURITIES.
2.1 Transferee of Subject Securities to be Bound by this
Agreement. Stockholder agrees that, during the period from the date of this
Stockholder Tender Agreement through the Expiration Date, Stockholder shall not
(i) take any action to cause or permit any Transfer of any of the Subject
Securities to be effected (other than pursuant to the Offer); (ii) tender any of
the Subject Securities to any Person (other than Merger Sub and Parent) or (iii)
take any action to create or permit to exist any Encumbrance with respect to any
Subject Securities (other than Encumbrances which do not affect the right to
tender such Subject Securities pursuant to the Offer and Encumbrances which do
not affect, directly or indirectly, the right of Parent to vote the Subject
Securities as provided herein).
2.2 Transfer of Voting Rights. Stockholder agrees that, during the period
from the date of this Stockholder Tender Agreement through the Expiration Date,
Stockholder shall ensure that: (a) none of the Subject Securities are deposited
into a voting trust; and (b) no proxy is granted, and no voting agreement or
similar agreement is entered into, with respect to any of the Subject
Securities.
3. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER.
Stockholder hereby represents and warrants to Parent as follows:
3.1 Authorization, etc. Stockholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Stockholder
Tender Agreement and the Proxy and to perform its obligations hereunder and
thereunder. This Stockholder Tender Agreement and the Proxy have been duly
executed and delivered by Stockholder and (except as the Proxy may be limited by
applicable law) constitute legal, valid and binding obligations of Stockholder,
enforceable against Stockholder in accordance with their terms, subject to (i)
laws of general application relating to bankruptcy, insolvency and the relief of
debtors, and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies.
3.2 No Conflicts or Consents.
(a) The execution and delivery of this Stockholder Tender Agreement and the
Proxy by Stockholder do not, and the performance of this Stockholder Tender
Agreement and the Proxy by Stockholder will not: (i) conflict with or violate
any law, rule, regulation, order, decree or judgment applicable to Stockholder
or by which it or any of its properties is or may be bound or affected; or (ii)
result in or constitute (with or without notice or lapse of time) any breach of
or default under, or give to any other Person (with or without notice or lapse
of time) any right of termination, amendment, acceleration or cancellation of,
or result (with or without notice or lapse of time) in the creation of any
Encumbrance or restriction on any of the Subject Securities pursuant to any
contract to which Stockholder is a party or by which Stockholder or any of his
affiliates or properties is or may be bound or affected.
(b) The execution and delivery of this Stockholder Tender Agreement and the
Proxy by Stockholder do not, and the performance of this Stockholder Tender
Agreement and the Proxy by Stockholder will not, require any consent or approval
of any Person that has not been obtained prior to the date hereof.
3.3 Title to Securities. As of the date of this Stockholder Tender
Agreement: (a) Stockholder holds of record (free and clear of any Encumbrances
or restrictions except as specifically disclosed on the signature page hereof or
created by this Stockholder Tender Agreement) the number of outstanding shares
of Company Common Stock set forth under the heading "Shares Held of Record" on
the signature page hereof;
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(b) Stockholder holds (free and clear of any Encumbrances or restrictions except
as specifically disclosed on the signature page hereof or created by this
Stockholder Tender Agreement) the options, warrants and other rights to acquire
shares of Company Common Stock set forth under the heading "Options, Warrants
and Other Rights" on the signature page hereof; (c) Stockholder Owns the
additional securities of the Company set forth under the heading "Additional
Securities Beneficially Owned" on the signature page hereof; and (d) Stockholder
does not directly or indirectly Own any shares of Company Common Stock or other
securities of the Company, or any option, warrant or other right to acquire (by
purchase, conversion or otherwise) any shares of Company Common Stock or other
securities of the Company, other than the shares and options, warrants and other
rights set forth on the signature page hereof.
4. MISCELLANEOUS.
4.1 Survival of Representations, Warranties and Agreements. All
representations, warranties, covenants and agreements made by Stockholder in
this Stockholder Tender Agreement shall survive until the Expiration Date,
unless this Agreement is earlier terminated as provided herein. This Agreement
shall terminate upon valid termination of the Merger Agreement as provided in
Section 8.1 thereof.
4.2 Expenses. All costs and expenses incurred in connection with the
transactions contemplated by this Stockholder Tender Agreement shall be paid
solely by the party incurring such costs and expenses.
4.3 Notices. Any notice or other communication required or permitted to be
delivered to any party under this Stockholder Tender Agreement shall be in
writing and shall be deemed properly delivered, given and received when actually
delivered (by hand, by registered mail, by courier or express delivery service
or by facsimile with confirmation of receipt) to the address or facsimile
telephone number set forth beneath the name of such party below (or to such
other address or facsimile telephone number as such party shall have specified
in a written notice given to the other parties hereto).
if to Parent:
Exelixis, Inc.
000 Xxxxxx Xxx
X.X. Xxx 000
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attn: General Counsel
with a copy to (which copy shall not constitute notice):
Xxxxxx Xxxxxx White & XxXxxxxxx LLP
000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxx
if to the Stockholder
at the address set forth below Stockholder's signature on the signature
page hereof
with copies to (which copies shall not constitute notice):
Facsimile No.
Attention:
4.4 Waiver of Appraisal Rights. Stockholder hereby irrevocably and
unconditionally waives, and agrees to cause to be waived and to prevent the
exercise of, any rights of appraisal, any dissenters' rights (including under
Section 262 of the Delaware General Corporations Law) and any similar rights
relating to the Merger or any related transaction that Stockholder or any other
Person may have by virtue of the ownership of any outstanding shares of Company
Common Stock Owned by Stockholder.
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4.5 No Solicitation. Except as permitted by Section 5.4 in his or her
capacity as a director or officer of the Company, as applicable, Stockholder
agrees that, during the period from the date of this Stockholder Tender
Agreement through the Expiration Date, Stockholder shall not, directly or
indirectly, and Stockholder shall use reasonable efforts to ensure that his
Representatives (as defined in the Merger Agreement) do not, directly or
indirectly: (i) solicit, initiate, encourage or induce the making, submission or
announcement of any Acquisition Proposal (as defined in the Merger Agreement) or
take any action that could reasonably be expected to lead to an Acquisition
Proposal; (ii) furnish any information regarding the Company to any Person in
connection with or in response to an Acquisition Proposal; or (iii) engage in
discussions or negotiations with any Person with respect to any Acquisition
Proposal. Stockholder shall immediately cease and discontinue, and Stockholder
shall ensure that his Representatives immediately cease and discontinue, any
existing discussions with any Person that relate to any Acquisition Proposal.
4.6 Severability. If any provision of this Stockholder Tender Agreement or
any part of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Stockholder Tender
Agreement. Each provision of this Stockholder Tender Agreement is separable from
every other provision of this Stockholder Tender Agreement, and each part of
each provision of this Stockholder Tender Agreement is separable from every
other part of such provision.
4.7 Entire Agreement. This Stockholder Tender Agreement, the Proxy and any
other documents delivered by the parties in connection herewith constitute the
entire agreement between the parties with respect to the subject matter hereof
and thereof and supersede all prior agreements and understandings between the
parties with respect thereto. No addition to or modification of any provision of
this Stockholder Tender Agreement shall be binding upon either party unless made
in writing and signed by both parties.
4.8 Assignment, Binding Effect. Except as provided herein, neither this
Stockholder Tender Agreement nor any of the interests or obligations hereunder
may be assigned or delegated by Stockholder or Parent without the prior written
consent of the non-assigning party, which consent shall not be unreasonably
withheld, and any attempted or purported assignment or delegation of any of such
interests or obligations shall be void. Subject to the preceding sentence, this
Stockholder Tender Agreement shall be binding upon, and inure to the benefit of,
Stockholder and its heirs, estate, executors, personal representatives,
successors and assigns (as the case may be), and shall be binding upon, and
inure to the benefit of, Parent and its successors and assigns. Without limiting
any of the restrictions set forth in Section 2 or elsewhere in this Stockholder
Tender Agreement this Stockholder Tender Agreement shall be binding upon any
Person to whom any Subject Securities are Transferred. Nothing in this
Stockholder Tender Agreement is intended to confer on any Person (other than
Parent and its successors and assigns) any rights or remedies of any nature.
4.9 Specific Performance. The parties agree that irreparable damage would
occur in the event that any provision of this Stockholder Tender Agreement or
the Proxy was, or is, not performed in accordance with its specific terms or
was, or is, otherwise breached. Stockholder agrees that, in the event of any
breach or threatened breach by Stockholder of any covenant or obligation
contained in this Stockholder Tender Agreement or in the Proxy, Parent shall be
entitled (in addition to any other remedy that may be available to it, including
monetary damages) to (a) a decree or order of specific performance to enforce
the observance and performance of such covenant or obligation, and (b) an
injunction restraining such breach or threatened breach. Stockholder further
agrees that neither Parent nor any other Person shall be required to obtain,
furnish or post any bond or similar instrument in connection with or as a
condition to obtaining any remedy referred to in this Section 4.9, and
Stockholder irrevocably waives any right he may have to require the obtaining,
furnishing or posting of any such bond or similar instrument.
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4.10 Non-Exclusivity. The rights and remedies of Parent under this
Stockholder Tender Agreement are not exclusive of or limited by any other rights
or remedies which it may have, whether at law, in equity, by contract or
otherwise, all of which shall be cumulative (and not alternative). Without
limiting the generality of the foregoing, the rights and remedies of Parent
under this Stockholder Tender Agreement, and the obligations and liabilities of
Stockholder under this Stockholder Tender Agreement, are in addition to their
respective rights, remedies, obligations and liabilities under common law
requirements and under all applicable statutes, rules and regulations. Nothing
in this Stockholder Tender Agreement shall limit any of Stockholder's
obligations, or the rights or remedies of Parent, under any agreement between
Parent and Stockholder; and nothing in any such agreement shall limit any of
Stockholder's obligations, or any of the rights or remedies of Parent, under
this Stockholder Tender Agreement.
4.11 Governing Law; Venue.
(a) This Stockholder Tender Agreement and the Proxy shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware (without giving effect to principles of conflicts of laws).
(b) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION
WITH ANY LEGAL PROCEEDING RELATING TO THIS STOCKHOLDER TENDER AGREEMENT OR THE
PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS STOCKHOLDER TENDER AGREEMENT
OR THE PROXY.
4.12 Counterparts. This Stockholder Tender Agreement may be executed by
the parties in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
4.13 Captions. The captions contained in this Stockholder Tender Agreement
are for convenience of reference only, shall not be deemed to be a part of this
Stockholder Tender Agreement and shall not be referred to in connection with the
construction or interpretation of this Stockholder Tender Agreement.
4.14 Waiver. No failure on the part of Parent to exercise any power,
right, privilege or remedy under this Stockholder Tender Agreement, and no delay
on the part of Parent in exercising any power right, privilege or remedy under
this Stockholder Tender Agreement, shall operate as a waiver of such power,
right, privilege or remedy; and no single or partial exercise of any such power,
right, privilege or remedy shall preclude any other or further exercise thereof
or of any other power, right, privilege or remedy. Parent shall not be deemed to
have waived any claim available to Parent arising out of this Stockholder Tender
Agreement, or any power, right, privilege or remedy of Parent under this
Stockholder Tender Agreement, unless the waiver of such claim, power, right,
privilege or remedy is expressly set forth in a written instrument duty executed
and delivered on behalf of Parent; and any such waiver shall not be applicable
or have any effect except in the specific instance in which it is given.
4.15 Construction.
(a) For purposes of this Stockholder Tender Agreement, whenever the context
requires, the singular number shall include the plural, and vice versa, the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be applied
in the construction or interpretation of this Stockholder Tender Agreement.
(c) As used in this Stockholder Tender Agreement, the words "include" and
"including", and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation".
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(d) Except as otherwise indicated, all references in this Stockholder
Tender Agreement to "Sections" and "Exhibits" are intended to refer to Sections
of this Stockholder Tender Agreement and Exhibits to this Stockholder Tender
Agreement.
4.16 Stockholder Capacity. No person executing this Stockholder Tender
Agreement who is a director or officer of the Company makes any agreement or
understanding herein in his capacity as such director or officer. Without
limiting the generality of the foregoing, Stockholder executes this Stockholder
Tender Agreement solely in its capacity as Owner of Subject Securities and
nothing herein shall limit or affect any actions taken by Stockholder in its
capacity as an officer or director of the Company in exercising the Company's
rights under the Merger Agreement, provided that no obligation, of Stockholder
to the Company as an officer or director of the Company shall affect, impair or
impede Stockholder's obligations under this Stockholder Tender Agreement to
tender the Tender Shares in accordance with Section 1.1 hereof or to vote the
Subject Securities in accordance with Section 1.2 hereof.
4.17 Obligation to Exercise Options. The Stockholder shall not be required
to exercise options, warrants or other rights to acquire shares of Company
Common Stock which are vested as of the date of this Stockholder Tender
Agreement or which become vested prior to the Offer Acceptance Time (the
"Subject Options"); provided, however, the Stockholder hereby covenants and
agrees to immediately exercise all Subject Options and immediately tender all
Company Common Stock received upon such exercise if (x) the number of Shares
validly tendered and not withdrawn in accordance with the terms of the Offer two
business days prior to the expiration date of the Offer (as it may be extended
from time to time), together with the Shares then owned by Parent and Merger Sub
(if any) (the "Tendered Shares"), do not satisfy the Minimum Condition, and (y)
the aggregate number of shares of Company Common Stock issuable upon exercise of
the "in the money" Subject Options Owned collectively by the officers and
directors of the Company who are parties to Stockholder Tender Agreements,
together with the Tendered Shares, would satisfy the Minimum Condition.
Notwithstanding anything in this Section 4.17 to the contrary, the Stockholder
shall not be required to exercise any Subject Option unless the Subject Option
is considered to be "in the money". A Subject Option shall be considered to be
"in the money" if the price of Parent Common Stock multiplied by the Exchange
Ratio exceeds the exercise price of such Subject Option at the date the Exchange
Ratio is determined. At the request of the Stockholder in connection with any
exercise of Subject Options pursuant to this Section 4.17, Parent or its
designees will provide to the Stockholder a loan on commercially reasonable
terms equal to the exercise price of the Subject Options exercised pursuant to
this Section 4.17 which loan shall be secured solely by the shares of Company
Common Stock received by the Stockholder in such exercise of any Subject
Options.
5. CERTAIN DEFINITIONS.
For purposes of this Stockholder Tender Agreement:
(a) "Company Common Stock" shall mean the common stock, par value
$0.001 per share, of the Company.
(b) "Expiration Date" shall mean the earlier of (i) the date upon
which the Merger Agreement is terminated, or (ii) the Offer Acceptance
Time.
(c) Stockholder shall be deemed to "Own" or to have acquired
"Ownership" of a security if Stockholder is the: (i) record owner of such
security; or (ii) "beneficial owner" (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934) of such security; provided,
however, that Stockholder shall not be deemed to Own a security solely
because of Stockholder's status as an executive officer, director, partner
or member of a Person that owns such Security.
(d) "Person" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership or other entity or (iii) Governmental Body.
(e) "Subject Securities" shall mean: (i) all securities of the Company
(including all shares of Company Common Stock and all options, warrants and
other rights to acquire shares of Company Common Stock) Owned by
Stockholder as of the date of this Agreement; and (ii) all additional
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securities of the Company (including all additional shares of Company
Common Stock and all additional options, warrants and other rights to
acquire shares of Company Common Stock) of which Stockholder acquires
Ownership during the period from the date of this Agreement through the
Expiration Date.
(f) "Tender Shares" shall mean: (i) all shares of Company Common
Stock Owned by Stockholder as of the date of this Agreement; and (ii) all
additional shares of Company Common Stock of which Stockholder acquires
Ownership (including without limitation as a result of any Subject
Securities) during the period from the date of this Agreement through the
Expiration Date.
A Person shall be deemed to have effected a "Transfer" of a security if
such Person directly or indirectly: (i) sells, pledges, encumbers, grants an
option with respect to, transfers or disposes of such security or any interest
in such security; (ii) enters into an agreement or commitment contemplating the
possible sale of, pledge of, encumbrance of, grant of an option with respect to,
transfer of or disposition of such security or any interest therein; or (iii)
reduces such Person's beneficial ownership interest in or risk relating to any
such security.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, Parent and Stockholder have caused this Stockholder
Tender Agreement to be executed as of the date first written above.
[NAME]
By:
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Name:
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[Name]
Address:
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Facsimile:
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OPTIONS WARRANTS AND ADDITIONAL SECURITIES
SHARES HELD OF RECORD OTHER RIGHTS BENEFICIALLY OWNED
--------------------- -------------------- ---------------------
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FORM OF IRREVOCABLE PROXY
The undersigned stockholder of Genomica Corporation, a
Delaware corporation
(the "COMPANY"), hereby irrevocably (to the fullest extent permitted by law)
appoints Xxxxxx Xxxxxxx, Xxxx Xxxx and Exelixis, Inc., a
Delaware corporation
("PARENT"), and each of them, the attorneys and proxies of the undersigned with
full power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to (i) the outstanding shares of Company
Common Stock or other securities of the Company owned of record by the
undersigned as of the date of this proxy, which shares are specified on the
final page of this proxy, and (ii) any and all other shares of Company Common
Stock or other securities of the Company which the undersigned may acquire on or
after the date hereof. (The shares of the Company Common Stock or other
securities referred to in clauses (i) and (ii) of the immediately preceding
sentence, except for shares which are not Subject Securities (as defined in the
Stockholder Tender Agreement), are collectively referred to in this proxy as the
"SHARES"). Upon the execution hereof, all prior proxies given by the undersigned
with respect to any of the Shares are hereby revoked, and the undersigned agrees
that no subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Stockholder Tender Agreement, dated as of the date hereof,
between Parent and the undersigned (the "STOCKHOLDER TENDER AGREEMENT"), and is
granted in consideration of Parent entering into the Agreement and Plan of
Merger and Reorganization, dated as of the date hereof among Parent, Bluegreen
Acquisition Sub, Inc., a
Delaware Corporation and a wholly owned subsidiary of
Parent, and the Company (the "MERGER AGREEMENT"). Capitalized terms used herein
and not otherwise defined shall have the meanings given to such terms in the
Merger Agreement.
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Shares at any meeting of the stockholders of the
Company, however called, and in any action by written consent of the
Stockholders of the Company at any time until the earlier to occur of (i) the
termination of the Merger Agreement, or (ii) the Offer Acceptance Time:
(i) against any action or agreement that would result in a breach of
any representation, warranty, covenant or obligation of the Company in the
Merger Agreement;
(ii) against any action or agreement that would cause any provision
contained in Section 7 or Annex I of the Merger Agreement to not be
satisfied; and
(iii) against the following actions (other than the Offer, the Merger
and the transactions contemplated by the Merger Agreement): (A) any
Acquisition Proposal (B) any change in a majority of the members of the
Board of Directors of the Company, other than any change contemplated by
Section 1.3 of the Merger Agreement; or (C) any other action which is
intended, or could reasonably be expected to, impede, interfere with,
delay, postpone, discourage or adversely affect the consummation of the
offer, the Merger or any of the other transactions contemplated by the
Merger Agreement or this Stockholder Tender Agreement.
The undersigned may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the undersigned (including any
transferee of any of the Shares).
This proxy shall terminate upon valid termination of the Merger Agreement
as provided in Section 8.1 thereof.
If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction, then
(a) such provision or part thereof shall, with respect to such circumstances and
in such jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of the remainder
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of such provision or the validity or enforceability of any other provision of
this proxy. Each provision of this proxy is separable from every other provision
of this proxy, and each part of each provision of this proxy is separable from
every other part of such provision.
[SIGNATURE PAGE TO FOLLOW]
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This proxy shall terminate upon the earlier of the termination of the
Merger Agreement and the Offer Acceptance Time.
Dated:
----------, 2001
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[Name]
Number of shares of common stock of
the Company owned of record or
beneficially as of the date of this
irrevocable proxy:
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